The Court of Protection and Criminal Law
October 30, 2021
This is an appeal from the judgment of Justice Hayden in Re C  EWCOP 25.
The appeal was allowed on the grounds that social workers arranging to obtain the services of a sex worker for C would put them at risk of committing an offense contrary to section 39 of the Sexual Offenses Act 2003 (“SOA”).
The question was whether social workers would commit a criminal offense under section 39 of the SOA if they made practical arrangements for C to visit a sex worker. C had the capacity to consent to sex but not to arrange for it.
Section 39 (1) of the SOA states that:
A person (A) commits an offense if:
a) he intentionally provokes or induces another person (B) to engage in an activity,
(b) the activity is sexual,
(c) B has a mental disorder,
(d) A knows or could reasonably expect to know that B has a mental disorder, and
(e) A participates in the care of B in a manner falling under section 42.
The central question was whether the caregivers would “induce” C to engage in sexual activity by making the necessary arrangements. Hayden J concluded that they would not induce C to engage in sexual activity.
The Secretary of State for Justice appealed on three grounds:
- The judge misinterpreted section 39 of the SOA;
- Punishing the use of sex is contrary to public order (this means was raised by way of a contested amendment);
- The judge erred in concluding that Articles 8 and 14 of the European Convention on Human Rights (“ECHR”) required his preferred interpretation.
Hayden J concluded that:
The central philosophy of SOA is to protect people in trusting relationships where the relationship itself elevates vulnerability. This essentially progressive legislation has taken care, in my opinion, to avoid restricting the life opportunities of people with learning disabilities or mental disorders. […] The legislative objective is to criminalize serious breach of trust […] They intend to criminalize people in positions of authority and trust whose actions are calculated to suppress the autonomy of people with mental disorders, in the area of sexual relations. Section 39 is structured to protect vulnerable adults from others, not themselves [89, 93].
Therefore, a social worker who has arranged a sex worker should not be subject to criminal sanctions because they have facilitated the exercise of personal autonomy.
Rather, the Court of Appeal began by exploring the meaning of the word “causality”. He concludes that causation in SOA must be interpreted in accordance with its ordinary meaning in criminal law. . The defendant’s conduct must be an active cause of the prohibited activity .
The Court of Appeal concludes that it was incorrect for Hayden JA to restrict the ordinary meaning of the word “causes” .
He goes on to say that the “legislative technique of the 2003 law is to draw clear lines to reduce the risk of abuse by those who are vulnerable and elsewhere to draw clear lines because it is necessary for certainty.” .
In addition, the Court of Appeal compared section 39 of the SOA with other SOA sections written in a similar fashion. It would be incongruous for “causes” to mean the same thing in all sections of SOA except one. In particular, the Court of Appeal refers to section 17 of the SOA, which criminalizes persons in positions of trust intentionally causing or inducing a child to engage in sexual activity. “Unless the word ’cause’ has a different meaning in Articles 17 and 39, this line of defense would be open to him according to the judge’s interpretation. No argument has been made that the words “provokes or incites” should mean different things in different places in Part 1 of the 2003 law ” .
Therefore, the Court of Appeal concluded that the word “causes” should be read in accordance with its ordinary meaning.
However, the Court of Appeal specified that:
On the other hand, caregivers who organize contact between a person with a mental disorder and their spouse or partner who are aware that sexual activity may take place would more naturally create the circumstances for that activity rather than provoke it in the legal sense. .
Leave to amend the grounds of appeal to include public policy arguments was refused.
It has been argued that Section 39 of the SOA interferes with C’s privacy under Section 8 of the ECHR, as the scope for the fulfillment of her sexual desires is greatly reduced if her caregivers cannot take these provisions. Furthermore, it was argued that there had been an interference with Article 14 ECHR because: (1) C will be treated differently from a person without a mental handicap who can make his own arrangements and (2) C suffers a discrimination because of his mental disability. compared to those who don’t.
However, the Court of Appeal rightly points out that:
There is nothing to indicate that such a positive obligation was recognized by the Strasbourg Court, nor that this court recognized that Article 8 entails a positive obligation for the State to authorize the purchase of sexual services without fear of harm. penalty sanction. […] It is hardly surprising that no Strasbourg Court case has been cited to us which recognizes a human right to purchase the services of a prostitute or to have such services provided by the State. [53, 58].
Regarding the interference with Article 14 ECHR, the Court of Appeal states that the SOA casts a “general cloak of protection around a large number of vulnerable people” and therefore any discrimination represents the balance struck for reach this goal. .
Drawing on Baker LJ’s example of a social worker “creating the circumstances” for sexual activity rather than “causing it”, King LJ refers to other “benign situations” that may arise. While any reporting under section 15 of the Mental Capacity Act 2005 is made on a case-by-case basis, this case nevertheless has far-reaching implications.
While the court was not asked to consider other circumstances under which Section 39 of the SOA would come into effect, this is likely a consideration for social workers, assistants and those who work in the area of mental capacity.